Bill of Rights: “further declaratory and restrictive clauses”

The Bill of Rights

“FURTHER DECLARATORY AND RESTRICTIVE CLAUSES”

The preamble to the Resolution which presented for ratification what became the Bill of Rights stated that,“in order to prevent misconstruction or abuse of [the Constitution’s] powers, * * * further declaratory and restrictive clauses clauses should be added”—which by “extending the ground of public confidence in the Government, it will best ensure the beneficent ends of its institution”.

Source: RESOLUTION OF THE FIRST CONGRESS SUBMITTING TWELVE AMENDMENTS TO THE CONSTITUTION (4 March 1789), in Documents Illustrative of the Formation of the Union of the American States, House Document No. 938, 69th Congress, 1st Session (Washington D.C.: Government Printing Office, 1927), at 1063.

Bill of Rights: “further declaratory and restrictive clauses”

Were close attention paid to what the original Constitution actually provided, the Second Amendment would be recognized as something of a redundancy. The Second Amendment is one of the ten “further declaratory and restrictive clauses” that, compiled in the Bill of Rights, were “added” to the original Constitution “in order to prevent misconstruction or abuse of its [then existing] powers”. (footnote 1) When Alexander Hamilton wrote that the original “Constitution [wa]s itself, in every rational sense, and to every useful purpose, A BILL OF RIGHTS” as to the General Government, (footnote 2) he understated the matter, because the Constitution embodied “A BILL OF RIGHTS” as to the States, too. This was self-evident with respect to those provisions that explicitly prohibited the States from exercising certain powers or engaging in certain activities, (footnote 3) which the Supreme Court early on described as “a bill of rights for the people of each state”. (footnote 4) But it should also have been obvious with respect to the States’ powers that concerned the Militia.

The very purpose of the Second Amendment proved Hamilton correct. Primarily, the Amendment aimed at preventing “misconstruction * * * of [the original Constitution’s] powers”—that is, the “[w]rong interpretation of [its] words”. (footnote 5) Not at detracting from exorbitant powers that had been carelessly delegated to the General Government, but instead at ensuring that no error would occur in the application of the already properly limited powers that had been delegated. So, what the Amendment meant, the original Constitution meant as well. But because the original Constitution could and should have been construed consistently with the meaning of the Second Amendment in the first place, with the Amendment thereafter serving at the most as a mere guide to and confirmation of that construction, then the original Constitution could and should have been so correctly interpreted and applied even before the Amendment’s ratification, and even thereafter without the Amendment’s aid.(footnote 6)

On the face of the original Constitution, Congress’s power “[t]o provide for organizing arming, and disciplining, the Militia,” (footnote 7) referred to “the Militia of the several States”as they existed in 1788. A basic principle of “the Militia” in 1788, and for generations theretofore, was that everyone eligible for the Militia was to be “organized” in some manner, even those who might have qualified for exemptions from certain Militia duties. And because of the nature of the three purposes for which the Militia might have been “call[ed] forth” “in the Service of the United States”—especially “repel[ling] Invasions” (footnote 8) which might have threatened the very survival of the entire Union—under the original Constitution Congress should have “provide[d] for organizing, arming, and disciplining” everyone eligible for “the Militia” in some appropriate manner. That is, “the Militia” should have been composed of “the body of the people” as a whole. (footnote 9) Therefore, by definition, Congress’s power “[t]o provide for organizing * * * the Militia” excluded any license to decide, in some invidiously discriminatory fashion, who would or would not compose “the Militia”. In the guise of “organizing * * * the Militia”, Congress could not have jury rigged a “select militia”, with everyone else consigned to an “unorganized militia”(or to no “militia” at all)—whether the Second Amendment had existed or not. (footnote 10)

Fallacy of the 2nd Amendment amounting to merely an 'individual right' for personal self-defense only.

The Second Amendment provides that “[a] well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed”. Various self-styled champions of the Amendment volubly promote its last fourteen words, without saying much of anything about the first thirteen. Indeed, they often try to distance themselves from anything with even a tangential connection to any conception of “militia”. Even as they profess their belief in the Second Amendment, they consign half of it to oblivion. Apparently they imagine that the first thirteen words, on the one hand, and the remaining fourteen words, on the other, somehow stand in mutual opposition, notwithstanding that they appear in the selfsame sentence. Or they believe that each set of words is irrelevant to the other, again although they are contained in the very same sentence. Or both. In order to overcome the psychological discomfort that must arise out of their dissecting this single sentence and discarding half of it, these advocates of the Second Amendment supply the rationalization that “the right of the people to keep and bear Arms” is an individual right, whereas “[a] well regulated Militia” is a collective undertaking—and therefore they can dismiss the Amendment’s first thirteen words as not having any controlling legal, logical, or even linguistic influence on the following fourteen.

If cognitive dissonance is the state of psychological angst which affects an individual who simultaneously attempts to entertain two mutually contradictory beliefs, were the Founders of this country victims of that disorder when they adopted the Second Amendment (and, for that matter, the Militia Clauses of the original Constitution (footnote 1) ? Certainly not. They understood—and relied upon—the principle that, “‘[i]n expounding the Constitution of the United States, every word must have its due force, and appropriate meaning; for it is evident from the whole instrument, that no word was unnecessarily used, or needlessly added. * * * Every word appears to have been weighed with the utmost deliberation, and its force and effect to have been fully understood’”. (footnote 2) So, with respect to the clause “[a] well regulated Militia, being necessary to the security of a free State”, “[i]t cannot be supposed that the framers of the Constitution did not use this expression with deliberation or failed to appreciate its plain significance”. (footnote 3) Obviously, the Framers both of the original Constitution and of the Second Amendment were fully aware of the relationship between individual and collective rights (and duties, for that matter) with respect to “the right of the people to keep and bear Arms”, because they conjoined those rights (and duties, too) in the Militia. The Framers well knew that a collective institution such as “[a] well regulated Militia” could be—indeed, would have to be—the protector of each individual member’s rights. The “well regulated Militia” to which the Second Amendment refers consist of citizens each of whom obviously must enjoy an indefeasible “right * * * to keep and bear” the particular “Arms” necessary for his own Militia service. For that reason, the Militia themselves are the ultimate guarantors of the right (and, as well, of the duty) of each individual eligible for Militia service “to keep and bear Arms”. And, by personally possessing suitable “Arms”, each individual reciprocally contributes to the effectiveness of the Militia, and thereby to “the security of a free State”. In short, the Second Amendment cannot be construed so as to set up a distinction, let alone a conflict, between an “individual” and a “collective” “right of the people to keep and bear Arms”. The “individual” and the “collective” right are two sides of the very same coin. “[T]he right of the people to keep and bear Arms” is necessary to the existence of the Militia; and the existence of the Militia guarantees, as nothing else can, “the right of the people”.

As with all half-baked ideas, the mental oven from which the “individual right” theory of the Second Amendment emerged contains some crumbs of legal substance. Of course the possession of “Arms” suitable for collective service in “[a] well regulated Militia” also provides each individual with the means to defend himself personally. So, of course “the right * * * to keep and bear Arms” is instrumental for both an individual and a collective purpose. But this is only part of the recipe that must be consulted. The important ingredient is the insight that a right and even a duty “to keep and bear Arms” solely for the individual purpose of personal self-defense could never guarantee, and would not even go very far towards, fulfillment of the collective purposes of fielding “[a] well regulated Militia” and thereby guaranteeing “the security of a free State” through community self-defense. Worse yet, a “right * * * to keep and bear Arms” for the purpose of individual self-defense “having nothing whatever to do with service in a militia” would in principle preclude a “right of the people to keep and bear Arms” for community self-defense. For, if an individual may be called upon to protect his community at the cost of his own life, then whatever “right * * * to keep and bear Arms” he may enjoy for purposes of personal self-defense must be subordinate to his duty “to keep and bear Arms” in order to participate in collective self-defense. Whereas, if an individual’s “right * * * to keep and bear Arms” “ha[s] nothing whatever to do with service in a militia”, then the duty of community self-defense through “[a] well regulated Militia” must be subordinate to the right of personal self-defense—which necessarily would mean that the clause “[a] well regulated Militia, being necessary to the security of a free State” has no operative effect (that is, no legal consequence), but amounts merely to some sort of vapid constitutional “window dressing”. Not only would this conclusion contradict the rule that, “‘[i]n expounding the Constitution * * * , every word must have its due force, and appropriate meaning; for it is evident from the whole instrument, that no word was unnecessarily used, or needlessly added’”, (footnote 4) but also it would make an indigestible historical, political, and philosophical hash out of the Second Amendment, the Militia Clauses of the original Constitution, and even the Declaration of Independence. (footnote 5)

The impossibility of the Militia being 'unorganized', the 'National Guard', a 'State Defense Force', or other fanciful name.

The establishments that the Constitution denotes collectively in one place as “the Militia of the several States”(footnote 1) and in other places simply as “the Militia” (footnote 2) must always be identified in precisely those words. And in any particular case, a single member of that group—which the Second Amendment describes as “[a] well regulated Militia”—must always be identified as “the Militia of [some State]”, such as “the Militia of Rhode Island” or “the Militia of Virginia”. No “Militia” should ever be called, either collectively or individually, “the National Guard”, “the State Guard”, “the Home Guard”, “the State Defense Force”, or by some other fanciful title without pre-constitutional provenance. To insist on this is not simply a semantic quibble, but instead a necessity if the Constitution is to be enforced with exactitude.

No one has any idea what names such as “National Guard”, “State Guard”, and so on mean historically or legally in relation to “the Militia of the several States”, because not one of those names appears in the Constitution, in the Articles of Confederation, or especially in any of the pre-constitutional Militia statutes upon which both the Articles and the Constitution drew for the meaning of the term “Militia”. All of those names were quite unknown to Americans of that era—for no pre-constitutional Militia statute ever referred to the institution it regulated as anything but a “Militia”. Thus, any definition given to any such name at any time subsequent to the ratifications of the original Constitution and the Bill of Rights is at least extra-constitutional, if not non-constitutional or even un-constitutional. Unless, of course, the name at issue is to be treated as a perfect synonym for “Militia”, no more and no less.

In that case, however, no justifiable purpose can be served by substituting the new name for the term “Militia” in the first place. At best, confusion is generated. For, if “Militia” is replaced by some other term with no clear pre-constitutional origin that proves beyond doubt the strict equivalence of the two nouns, then the unavoidable conclusion must be —or at least the inference useful to some political factions or controversialists inevitably will be—that the new term denotes an entity somehow different from a true constitutional “Militia”. If so, the questions will arise: What is that new entity? What is its origin? What are its characteristics? And, most important, what is its legitimacy? Whatever the answers to the first three queries, the response to the fourth must be “none at all”. If in any degree truly new, the entity can have no legitimacy, because it does not derive from the Constitution—and “[t]he government * * * of the United States”, in any of its parts, “can claim no powers which are not granted to it by the constitution”. (footnote 3)

Conversely, if the new name is supposed to mean nothing more or less than “Militia” in the unadulterated and undiluted constitutional sense, then why not simply use the term “Militia”, and thereby avoid all equivocation, doubt, and possibility of error? Or something worse than mere error: One need recall, for example, only how the Judiciary has rationalized an intellectually infinite (albeit dishonest) expansion of the power of Congress “[t]o regulate Commerce * * * among the several States” (footnote 4) by misapplying that clause as if it read “[t]o regulate [whatever affects] Commerce * * * among the several States”, even though the phrase “whatever affects” (or any other words to that effect) nowhere appear in the Constitution, and even though the subjects of the purported “regulat[ions of whatever affects] Commerce” themselves never travel or are transported “among the several States”, or never move very far within a single State, or even never constitute or participate in “Commerce” at all. (footnote 5)

Although to date the overall result has not been quite as grotesque, the attempt to substitute the term “National Guard” for the constitutionally proper name “Militia” has injected terminological incoherence into this area of law. For the Militia are not in any sense uniquely a “National Guard”, because they are “the Militia of the several States” which can be called forth and “employed in the Service of the United States” only for three defined, and therefore limited, National purposes. (footnote 6) Otherwise, at all times they protect their own individual States. Thus, not surprisingly, in practice this substitution of names has created all sorts of intractable problems. For example, in 1903 Congress purported to divide the Militia into “the organized militia, to be known as the National Guard”, and “the remainder to be known as the Reserve Militia”. (footnote 7) In 1916, Congress purported to “divide[ the Militia] into three classes, the National Guard, the Naval Militia, and the Unorganized Militia”, and to designate these three collectively as “the militia of the United States”. (footnote 8) Today, Congress claims that the so-called “militia of the United States” is composed of two “classes”: namely, “the organized militia, which consists of the National Guard and the Naval Militia”; and “the unorganized militia”, which consists of everyone else potentially subject to duty in “the militia of the United States”. (footnote 9) Apparently, the impossibility of a “militia of the United States” under a Constitution that recognizes only “the Militia of the several States”, and delegates no power to the General Government to create any other form of “Militia”, has not dawned on modern lawmakers. (footnote 10) Neither have lawmakers noticed the impossibility of “unorganized militia” under a Constitution which empowers Congress only “[t]o provide for organizing * * * the Militia”, and in which “[a]ffirmative words are * * * negative of other objects than those affirmed”. (footnote 11)

In sum, no more justification exists or could exist—whether in constitutional law, in American history, or in common sense—for statutorily renaming “the Militia of the several States” or any part thereof “the National Guard” than for renaming the President of the United States “the Leader” or for renaming Congress “the Supreme Soviet of America”. Indeed, the only purpose for such verbal transmogrifications would be for their proponents to assert, somehow as a consequence of their linguistic legerdemain alone, powers for “the Leader” or for “the Supreme Soviet” different from—and doubtlessly in gross excess of—the powers the Constitution actually confers upon the President or Congress. Or, in the case of the Militia, characteristics significantly different from those the Militia exhibited in pre-constitutional times and that the original Constitution and the Second Amendment adopted—and therefore characteristics that would seriously detract from the ability of the Militia to perform the functions the Amendment declares to be “necessary to the security of a free State”. (footnote 12)

7.) Compare and contrast An Act To promote the efficiency of the militia, and for other purposes, Act of 21 January 1903, CHAP. 196, § 1, 32 Stat. 775, 775, with An Act more effectually to provide for the National Defence by establishing an Uniform Militia throughout the United States, Act of 8 May 1792, CHAP. XXXIII, § 1, 1 Stat. 271, 271, and with Revised Statutes of the United States (1873-1874), TITLE XVI, THE MILITIA, § 1625, 18 Stat. 285, 285.

8.) An Act For making further and more effectual provision for the national defense, and for other purposes, Act of 3 June 1916, CHAP. 134, § 57, 39 Stat. 166, 197.

9.) 10 U.S.C. § 311.

10.) See U.S. Const. art. II, § 2, cl. 1 and art. I, § 8, cls. 15 and 16. Contrast U.S. Const. art. I, § 8, cls. 12 and 13. In fairness to latter-day Members of Congress, this terminological error or confusion has not cropped up only from 1916 to today. See An Act to regulate the pay of the non-commissioned officers, musicians and privates of the Militia of the United States, when called into actual service, and for other purposes, Act of 2 January 1795, CHAP. IX, § 1, 1 Stat. 408, 408 (“the militia of the United States, when called into actual service”); An Act directing a Detachment from the Militia of the United States, Act of 9 May 1794, CHAP. XXV, 1 Stat. 367; An Act authorizing a detachment from the Militia of the United States, Act of 24 June 1797, CHAP. IV, 1 Stat. 522; An Act directing a detachment from the Militia of the United States, and for erecting certain Arsenals, Act of 3 March 1803, CHAP. XXXII, 2 Stat. 241; An Act authorizing a detachment from the Militia of the United States, Act of 18 April 1806, CHAP. XXXII, 2 Stat. 383; An Act authorizing a detachment from the Militia of the United States, Act of 30 March 1808, CHAP. XXXIX, 2 Stat. 478; An Act to authorize a detachment from the Militia of the United States, Act of 10 April 1812, CHAP. LV, 2 Stat. 705; An Act Making appropriation for the support of the Army for the fiscal year ending June thirtieth, nineteen hundred and two, Act of 2 March 1901, CHAP. 803, 31 Stat. 895, 903 (“[f]or the continuance of the Army War College * * * for investigation and study in the Army and militia of the United States”).

One presumes, though, that from 1795 to 1812 Members of Congress were referring to “the United States” in the then-familiar collective sense of each and every State allied in the Union, as opposed to the unitary sense of the General Government. That is, “the United States” was taken, not as a singular, but as a plural, noun, as it is in the original Constitution. See U.S. Const. art. I, § 9, cl. 8, and art. III, § 3, cl. 1. See also U.S. Const. amends. XI and XIII, which evidence the continuation of this usage for some seventy-seven years. If so, “the militia of the United States” would have meant the aggregation of the Militia of each of the States composing the United States, that is, “the Militia of the several States”. This seems to be the most plausible interpretation, because the Act of 1795 refers to “the Militia of the United States, when called into actual service”, which plainly draws upon the constitutional language, “the Militia of the several States, when called into * * * actual Service”. See U.S. Const. art. II, § 2, cl. 2.

In 1901, conversely, Members of Congress may have been thinking of the “militia of the United States” as the Militia that could be “call[ed] forth” to “be employed in the Service of the United States”—that is, the “Part” of “the Militia of the several States” that could come under the direct control of the General Government for one or more of the three purposes the Constitution enumerates. See U.S. Const. art. I, § 8, cls. 15 and 16; and art. II, § 2, cl. 1. After all, the statutory language “the Army and militia of the United States” can hardly be taken to employ the phrase “of the United States” in two different senses at the same time—referring to “the United States” as an unified collective in relation to the “Army” (because there is no such thing as an “Army of the several States”), but implicitly referring to “the United States” as “the several States” in relation to the “militia”. Of course, although a less likely reading, the collective sense of “the United States” could have been intended, too, inasmuch as “the Army * * * of the United States” is “the Army of the several States” in their unified capacity as “the United States”.

The perverse ruling in D.C. v. Heller emphasizes the wisdom in Alexander Hamilton's warning against a Bill of Rights.

It suffices to point out the Supreme Court’s shameful failure to exercise “the judicial Power of the United States” (footnote 1) properly in the Heller case. (footnote 2) In Heller, the Justices in the majority ruled that “a ban on handgun possession in the home violates the Second Amendment”; nevertheless, they also opined—albeit only in dicta but with the concurrence of the Justices in the minority as well, so that on this point the Court was unanimous—that the Amendment does not prohibit the General Government from “bann[ing]” “weapons that are most useful in military service—M-16 rifles and the like” as well as other “sophisticated arms that are highly unusual in society at large” precisely because they have been “banned”. (footnote 3) According to Heller, at best the Second Amendment imposes only a partial impediment upon the exercise of some general power of Congress—the exact location of which power in the Constitution the Justices did not identify—to “ban[ ]” certainly some, and perhaps all, firearms from WE THE PEOPLE’S possession. This perverse result emphasizes the wisdom in Hamilton’s warning that

bills of rights * * * [we]re not only unnecessary in the [original] Constitution but would even be dangerous. They would contain various exceptions to powers which [we]re not granted; and, on this very account, would afford a colorable pretext to claim more than were granted. For why declare that things shall not be done which there is no power to do? * * * I will not contend that [a right set out in a bill of rights] would confer a regulating power; but it is evident that it would furnish, to men disposed to usurp, a plausible pretense for claiming that power. They might urge with a semblance of reason that the Constitution ought not to be charged with the absurdity of providing against the abuse of an authority which was not given * * * . This may serve as a specimen of the numerous handles which would be given to the doctrine of constructive powers, by the indulgence of an injudicious zeal for bills of rights. (footnote 4)

Footnotes:

1.) U.S. Const. art. III, § 1.

2.) District of Columbia v. Heller, 554 U.S. 570 (2008).

3.) Id. at 635, 627 (Scalia, J., for the Court).

4.) The Federalist No. 84.

WE THE PEOPLE provide the ultimate, and the only really reliable, “checks and balances” in the constitutional system. “WE THE PEOPLE * * * ordain[ed] and establish[ed] th[e] Constitution”. (footnote 11) And “[t]he power to enact carries with it final authority to declare the meaning of the legislation”. (footnote 12) Moreover, “whenever a question arises between the society at large and any magistrate vested with powers originally delegated by that society, it must be decided by the voice of society itself: there is not upon earth any other tribunal to resort to.”(footnote 13) So, being absolutely superior to any and all public officials, whether civilian or military, THE PEOPLE enjoy an absolute right to require all public officials, whether civilian or military, to abide by THE PEOPLE’S construction of the Constitution. If that right is to be meaningful, however, a remedy must exist for its enforcement. Because “[a] right without a remedy is as if it were not. For every beneficial purpose it may be said not to exist.” (footnote 14) The Militia is that remedy.

Nothing could be more erroneous—and even destructive of the purpose of the Second Amendment as well as the Militia Clauses of the original Constitution—than the notions that not only does “the right of the people to keep and bear Arms” embrace an “individual right to possess and carry weapons in case of confrontation”, “having nothing whatever to do with service in a militia”, but also individual self-defense is “the central component of the right itself”. (footnote 15)

The competence of the Militia must be visualized as a spectrum akin to that of visible light—at the “red” end purely military and para-military functions; at the “blue” end, functions related to purely political, economic, and social “security”, such as the supervision of honest elections and the provision of an alternative constitutional currency; and in between, a multitude of functions encompassing enforcement of the laws and responses to exigent circumstances and novel dangers of one kind or another.

Footnotes

1.) RESOLUTION OF THE FIRST CONGRESS SUBMITTING TWELVE AMENDMENTS TO THE CONSTITUTION (4 March 1789), in Documents Illustrative of the Formation of the Union of the American States, House Document No. 938, 69th Congress, 1st Session (Washington D.C.: Government Printing Office, 1927), at 1063.